Judicial Precedent

Jacolien Barnard NO and Another v National Consumer Tribunal and Another

CitationJacolien Barnard NO and Another v National Consumer Tribunal and Another (940/2021) [2023] ZASCA 121 (18 September 2023)

JurisdictionZA

Area of Law

Administrative LawConsumer Credit LawCivil ProcedureInsolvency Law

Facts of the Case

The National Credit Regulator investigated CMR Group (Pty) Ltd’s “Pawn your car and still drive it” scheme and alleged multiple contraventions of the National Credit Act 34 of 2005 (NCA), including excessive interest, prohibited charges, and failure to conduct affordability assessments. The Regulator applied to the National Consumer Tribunal for declaratory and remedial relief. CMR filed an answering affidavit conceding to the relief sought if prohibited conduct were found. Before the Tribunal hearing, CMR was placed in voluntary liquidation and provisional liquidators (the applicants) were appointed. Although notified of the hearing and indicating that they would attend, neither CMR nor the liquidators appeared at the Tribunal. The Tribunal proceeded in their absence and made far‑reaching orders, including cancellation of CMR’s registration, declaring all credit agreements reckless, setting aside consumers’ obligations, and ordering reimbursement. The liquidators appealed to the Gauteng High Court under s 148(2)(b) of the NCA. The High Court dismissed the appeal for lack of jurisdiction, holding that participation in the Tribunal hearing is a jurisdictional requirement for an appeal. The liquidators sought special leave to appeal to the Supreme Court of Appeal.

Judicial Outcome

Condonation for the late filing of the application was granted, but the application for leave to appeal was struck off the roll, with costs awarded against the applicants, including the costs of two counsel where employed.

Legal Significance

The case authoritatively clarifies that actual participation in a National Consumer Tribunal hearing is a jurisdictional requirement for an appeal under s 148(2)(b) of the National Credit Act. It reinforces the procedural divide between appeals and rescission remedies under the NCA and underscores the importance of following the statutory scheme governing Tribunal decisions. The judgment has significant implications for litigants, including liquidators, seeking to challenge Tribunal orders.